Kendall v. Kendall and free speech

[Rob Weinberg]

At 04:31 PM 12/12/97 PST, Eugene Volokh wrote:

>Rob Weinberg writes:
>
>> Courts enter orders all the time in acrimonious cases forbidding one parent
>> from bad-mouthing the other, or doing anything that would tend to do damage
>> to the other parent's relationship with the child, clearly a restriction
>> with free speech implications.  I don't see a big difference when the
>> "speech" involved is religious upbringing.
>
>    I agree, but I'd flip this around.  The case that got me
>interested in this whole field in fact involved a court injunction
>saying "Do not say bad things about the other parent, and do say good
>things about her" (Schutz v. Schutz, Fla. App., 1991).  And I do
>think this is often done.  The question is why it's constitutional.
>
>    If the reason is that "your mother is a slut" is speech without a
>great deal of literary, artistic, scientific, or political value --
>not a reason I'm wild about -- then religious or political
>statements, even ones that reflect badly on the other parent, would
>indeed be different.  If the reason is something else, then what is
>it?

I wasn't sure where Eugene (Gene?) was going with the last paragraph.  The
question whether speech has "literary, artistic, scientific, or political
value" is one I've never seen outside the context of obscenity law. It is
an affirmative defense (or maybe its negative is an element of proof, this
ain't my area). But those are not reasons that will be articulated to
abridge (or defend) first amendment freedoms in the domestic relations arena.

I think I can address the question "why it [may be] constitutional" when it
comes to curtailing speech in the domestic relations context. The
government can curtail speech (or censor it) when it has a compelling state
interest and when the abridgment is narrowly tailored to the remedying the
harm. Here the compelling state interest is maintaining whatever is left of
the integrity of the family unit, or parent-child relationship(s),
something that the law presumes (in the absence of proof to the contrary)
is in the "best interests of the child." If one parent is poisoning the
child against the other (under the guise of the exercise of their
religion), the court may, I would argue, step in.

In _Kendall_, and admittedly I've only skimmed the order, I would question
how narrowly tailored forbidding one parent from exposing the child to
his/her own religion is to the compelling state interest of protecting the
integrity of the parent-child relationship. Even in the example where the
child is exposed to "christian" faiths that believe anyone who is not a
"christian," as they define it, is going to hell does not lend itself, to
me, to a presumption that that is harmful to the "non-christian" parent,
absent more.

Now, enterprising lawyers may offer proof to the court that it is
psychologically damaging to the child to be exposed to two belief systems,
and there's been some discussion and speculation here about that. But I
think there'll be just as much proof to the contrary, as I have speculated
earlier. What's a little conflict on the question of theology between
divorced parents that the ordinary child does not encounter between parents
who remain together? (Anybody remember _The Waltons_ ?) Enterprising
lawyers may also argue that the mere exposure of the child to the
"non-christian" belief system may threaten the "christian" parent's ability
to raise his/her child as he/she sees fit, that it may lessen the parent's
ability to fully indoctrinate the child in the tenets of the faith. That is
certainly a compelling interest of the "christian" parent, but is it a
compelling interest of the state? No. Because the state's primary interest
is not to *ensure* that the child is raised or indoctrinated one way or the
other according to the parent's sincerely held beliefs. That's promotion.
Rather, it is merely to protect the integrity of the child's relationships
with each parent, regardless of what either parent believes.

That's why going down this road in the child custody/visitation setting is
the proverbial red herring. The court's primary concern should be what will
maintain, foster, or promote the integrity of the parent-child relationship
with each parent. Only when one parent's actions in the exercise of their
free speech or religious expression threaten the child's relationship with
the other parent, should the court step in, and if it does, it should be
narrowly tailored to that single objective.

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    Rob Weinberg, Montgomery, AL
http://www.mindspring.com/~robertmw/